ARE independent counsels a vital bulwark against wrongdoing in
the United States executive branch? Or are they out-of-control
prosecutors on a witch hunt against presidential appointees?
Those are the questions congressmen, editorial writers, and the
public at large will be asking this year as Congress considers
whether to reenact a law that allows the attorney general to ask a
panel of appellate judges to appoint an independent counsel to look
into alleged malfeasance by top executive-branch officials.
Three independent counsels, appointed before the law expired on
Dec. 15, 1992, are still in business: Lawrence Walsh, investigating
the Iran-contra affair; Arlin Adams, looking into alleged
corruption at the Reagan-era Department of Housing and Urban
Development (HUD); and Joseph diGenova, appointed just one day
before the law expired to investigate the State Department's
pre-election search for President-elect Clinton's passport file.
Law came after Watergate
The independent-counsel law was passed in 1978. At the time,
memories of Watergate and the "Saturday Night Massacre" - when
President Nixon fired special prosecutor Archibald Cox - were still
fresh. Congress sought to prevent a future president from firing a
prosecutor investigating top-level misconduct.
Many of the 14 independent counsels, however, have been heavily
criticized for being too zealous in pursuing public servants.
Only three of those investigations have resulted in convictions,
but all of them have tarnished the reputations of those under
For example, Raymond Donovan, who was secretary of labor under
Ronald Reagan, was investigated for alleged ties to organized crime.
Eventually, independent counsel Leon Silverman cleared him of
the charges, but the former Cabinet secretary asked plaintively:
"Where do I go to get my reputation back?"
The basic problem with the law, says Terry Eastland, a former
official in the Reagan Justice Department, was that it allowed a
special prosecutor virtually unlimited time and resources to work
on one case.
"Independent counsels are so single-minded that they do not
proceed according to the standards that would guide ordinary
prosecutors," says Mr. Eastland, now a fellow at the Ethics and
Public Policy Center in Washington. "They can indict almost anyone.
The problem is getting juries to agree."
Charges of excessive zeal most often have been directed at Mr.
Walsh, who has spent over six years and $33 million investigating
the Iran-contra affair. But similar criticisms have been leveled at
other independent counsels. …